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Veterans Legal Clinic Publishes Report, Files Rulemaking Petition on Access to the VA for Veterans with Bad-Paper Discharges

The Veterans Legal Clinic of the Legal Services Center, in partnership with Swords to Plowshares and the National Veterans Legal Services Program (NVLSP), published Underserved: How the VA Wrongfully Excludes Veterans with Bad Paper.

The report finds that hundreds of thousands of veterans—including more than 125,000 Post-9/11 veterans—are being excluded from basic veteran services by the Department of Veterans Affairs (VA). Many have served in combat or hardship conditions. Many have mental or physical injuries because of their service. Nevertheless, they are being excluded from basic health care, housing and employment resources, and disability support because they received “bad-paper” discharges.

Congress intended for the VA to provide services to almost all veterans, creating an expansive eligibility standard in the 1944 G.I. Bill of Rights. Congress instructed the VA to deny benefits only to those who received or should have received a dishonorable discharge, and to consider whether positive or mitigating factors, such as combat service, hardship, or mental health conditions, outweigh any misconduct. However, the report shows that the VA’s own discretionary regulations fail to carry out that mandate. Moreover, the high rates of exclusion impede national efforts to address the high rates of suicide and homelessness among the veterans community.

Underserved reviews the history of the VA’s modern eligibility standard, analyzes records obtained from the VA and the Department of Defense, and evaluates 23 years of decisions by the Board of Veterans’ Appeals.  The report’s key findings include:

  • Post-9/11 Era veterans are being excluded from basic veteran services at unprecedented rates—6.5% cannot access basic veteran services—which is twice the rate for Vietnam Era veterans and nearly four times the rate for World War II Era veterans.
  • 3 out of 4 veterans with bad-paper discharge who served in combat and have Post-Traumatic Stress Disorder are denied recognition as “veterans” by the Board of Veterans’ Appeals.
  • There are wide disparities in eligibility rates among the VA Regional Offices and among Veterans Law Judges at the Board of Veterans’ Appeals.
  • Marine Corps veterans are nearly 10 times more likely to be excluded from the VA as Air Force veterans.

In response to these findings, Swords to Plowshares and NVLSP filed a Petition for Rulemaking asking the VA to change its regulations so that they better accord with Congress’s intent and so that more veterans are able to access the benefits that they need and deserve. The organizations further asked the VA to cease requiring pre-eligibility reviews for most veterans who were administratively discharged and to incorporate consideration of positive and mitigating factors into the pre-eligibility review standards. The Veterans Legal Clinic at the Legal Services Center of Harvard Law School and Latham & Watkins LLP represent Swords to Plowshares and NVLSP in the Petition for Rulemaking.

The report generated attention from various media sources, including the New York Times, CNN, Stars & Stripes, and Task & Purpose. Also reporting on Underserved were Southern California Public Radio, BYU Radio, WKOW Madison News, WWLP Western Massachusetts News, The Meadville Tribune, and Opposing Views.

VA’s adoption of the Petition for Rulemaking’s proposed regulations would help to ensure that no veterans are denied the care and support that our nation owes them. Through the Report and Petition, the Veterans Legal Clinic is advocating for large-scale policy changes as well as continuing the Clinic’s daily work of helping veterans to access justice.

A copy of Underserved can be downloaded here. The Petition for Rulemaking can be downloaded here.

“The rising proportion of ineligible veterans is largely due to the military’s increasing reliance on other-than-honorable discharges, which have been used as a quick way to dismiss troubled men and women who might otherwise qualify for time-consuming and expensive medical discharge.” Dave Philipps, Report Finds Sharp Increase in Veterans Denied V.A. Benefits, New York Times (March 30, 2016).

“This is affecting the veterans most at need,’ Kevin Miller, a spokesperson for Swords to Plowshares, told Task & Purpose. ‘Two of the main VA initiatives are aimed at ending veteran homelessness and stopping veteran suicide, and those that have bad paper are at higher risk for both homelessness and suicide.” James Clark, VA Is Denying Benefits To Vets With Bad Paper Discharges At Unprecedented Rates, Report Finds, Task & Purpose (March 30, 2016).

“The stakes for this really couldn’t be higher. If the VA doesn’t recognize you as a veteran, not only do you lose the dignity of acknowledgement of your service,  but you lose those really basic services.” Jake Tapper, Benefits being denied to veterans?, CNN (March 31, 2016).

“VA Deputy Secretary Sloan Gibson released a statement praising the report . . . ‘I believe the report provides us, as a department, an opportunity to do a thorough review, take a fresh look this issue and make changes to help veterans,” he said. “Where we can better advocate for and serve veterans within the law and regulation, we will look to do so as much as possible.’” Heath Druzin, Report: VA unfairly denied services to 125K post-9/11 veterans, Stars & Stripes (March 30, 2016).